The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1887-03-10
THE cOs1M1ssIoNER coNrEsT.
Judge Graves Decides the Case in
Favor OrW. p. Gould.
Jacob Jacobs, Jr., Confession,


missioner. The contestee received a
certificate of election from the Board
of Canvassers. The confession contested
said election before a court organized
fer tina purpose under Art. 6, Chapter
SO, Gener al Statutes. That court de-
cided that the contestee was elected.
but was ineligible to Office. and for that
reason the election was set aside, both
parties excepted, and bring the case to
this court for review upon petition. and
crOsS-petition in error. The record
shows that the contestee re-
ceiyed G63 votes, that the
confession received 5S2. There
were "a other votes cast at said election
which the confession claims ought to
have been counted for him. Had they
been so counted he would have been
elected by 3 majority. Whether these
votes ought To be counted for the con-
testor or not is the question presented
by him for review. The disputed bal
lots are as follows: Jacobs, Jr., 1; J.
Jacobs, "A; Jacob Jacobs, 81, j. Jacob.
Jr., 3; Jace JacOps, L; J. JACOB, =; ia
cob, 3; Jake Jacobs, 3; J. Jacobs, Jr., 2;
j. job, l; Jacob jobs, 2; Jacob Jacob, /;
Jr. Jacobs, ]; j. }. Jacobs, I.-S2.
There were two other ballots cast
which had the name of w. T.. Gould
printed thereon, under which was
name was not erased. One vote was
cast for Hugh Williams. Should these
disputed ballots all be counted for the
COntestorI
The rule of law applicable to this in
quiry and the one followed by the Con-
test Court, is substantially as follows:
Where ballot, on it's face, is indefinite
and uncertain as to the person intended
by the voter, recourse may be had to
the facts of public nature surround
ing the election, and if such facts and
the face OF the ballot, when counted to-
gether, show beyond a reasonable
doubt what the intent of the voter was,
then such intent ought to be made eff
fectual, otherwise the vote should not
be counted.
Clark vs. County Commissioners. 80 Kansas,
Attorney General VS.. Ely. Wisconsin. 40
wPeoplc VS.. Ferguson, Cow lGe,
state VS.. Gates, - Conn. Ss,.
State VS.. Griney, Neb l6l.
Huntington VS.. Turner. Il III. 24.
In Maine, and Michigan, it has been
held that the face of the ballot speaks
Tor itself and cannot be aided by eX-
trinsic proof, 80 Maine 500, 10 Michi-
igan 2o3 and cases cited. But the de-
cided weight of authority is conceded
to be otherwise. The question under
consideration therefore is one of fact,
and not of law. The contest Court
heard the evidence and decided this
question OF fact adversely to the con-
testOr.
y finding of fact by a trial court is
as conclusive upon reviewing count
as the verdict of jury.
Clark VS.. Hall 10 Kansas, 81.
Gibbs VS.. Gibbs Is Kansas, 40.
Central Branch IL. H. Co.. ~ Kansas, o.
winstead Sauderord, u Kansas, 40.
Mccoy VS.. whitehOuse, - Kansas, 4S}.
This would seem to make further IN
quiry upon this question unnecessary,
but counsel contend that the above
rule does not apply to this case. and in
sist that the court examine the facts as
If presented i'll an original case. AS
concession To counsel therefore, rather
than as an official duty, this eXamina-
ton has been made.
The facts disclosed by the record
other than the fact of the returns are
substantially as follows: The con-
testor has resided in the commissioner
district wherein he and the cOntestee
were candidates for more than fifteen
years Immediately prior to the election,
he has always signed his name Jacob
Jacobs. Jr. lie has held the Office of
Township Trustee for two terms. He
was nominated to the office of County
Commissioner by his political party at
its public convention held about sixty
days before the election. At said con-
Vention he was known, spoken of and
nominated as Jacob Jacobs, Jr. He
made an open, active and aggressive
campaign. His candidacy was a prom
inent feature of every political meet
ing held by his party is his district. In
every issue of his party paper during
the campaign attention was called to
his candidacy and his fitness for the
Office commented upon. lie received
the earnest support of his party and
al A
the campaign his candidacy WAS fire.
quently mentioned by every paper
printed i'll the county, and whenever
mentioned his name was printed Jacob
Jacobs, Jr. In all political meetings
where he WAS spoken of il was as Jacob
Jacobs, Jr. The defective ballots were
cast by voters who voted the party
ticket opposed to the confession, who,
not wishing to vote for their own
candidate, wrote the name of the per-
son voted on their ticket in the place of
the name of their party candidate.
The confession was the only candidate
by the name of Jacobs, for any Office at
that election.
The father of the confession lived in
the same commissioner district and had
resided there continuously for more than
fifteen years prior to said election. He
was about seventy years of age. Was
"a farmer. Has never been a candidate
LOT Office, nOE nOlu an Office Ills name
Is Jacob Jacobs. The confession also
has a brother by the name of John
Jacobs, who has resided in said district
for more than fifteen years, is also a
farmer and about thirty years of age.
Upon these facts the confession claims
that every ballot bearing the name of
Jacobs in any form and every combina-
ton of letters which would justify the
inference that the name Of Jacobs was
intended ought to be conclusively pre-
sumed to have been intended for him.
The cOnteStee claims, on the other hand,
that whatever may be the rule us to
the other disputed ballots, those bear
ing the name of Jacob Jacobs cannot
be counted for the confession. If this
claim of the contestee be correct then
the trial court decided properly upon
this point, and any inquiry as to the
other disputed names will be unneces-
sary.
1t has been held that additions to Il
name, as Jr., ST.. Esq, and
the like and titles prefiXed as Col,
Capt, Hon., and the like, are
no part of the name and as general
rule ought to be disTegarded.
Cushing's Law and Practice. section 3 anC
People VS.. Cook. Il Barb a59 and cases cited
MeCrary on election page Sis. second edi
No case has been presented, however
which lays this rule down as anything
more than a general one, and the onl,
cases in which, the rule has been fol
lowed contain facts of such eharacte
that the addition could not have beel
OF any significance whatever in deter
mining the question of identity. Tn
only case presented which bears III
remotest resemblance tn the one unde
consideration is the case of People V,
Cook, supra.
The noinfs of resemblance In mi
case are that the confession wrote II
after his name. He was nominated Il
State Office by his party convention
lie had held. Office before. His nam
was Benjamin Welsh. Jr. lie IN
"A father who resided in the same stat
by the name of Benjamin Welsh. WI
was an obscure farmer about 40 yea
of age, and had never held Office II,
sought one. The question i'm that Gu:
nraS 1H-hat her hnllnis with the 1nnrn.. .